Legality and validity of the verdict The verdict of the court must be lawful and justified

By the verdict of the Ural City Court of the West Kazakhstan Region dated September 27, 2018: M., had no previous criminal record, was sentenced under part 1 of Article 297 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison to serve her sentence in an institution of the medium-security penal system. On the basis of part 1 of Article 74 of the Criminal Code, the serving of the sentence was postponed for 5 years. Control over the behavior of the convicted M. is entrusted to an authorized specialized state body. The condemned M. the consequences of violating the conditions of deferred punishment provided for in parts 2), 3), 4) of Article 74 of the Criminal Code are explained. A decision was made to recover the procedural costs, and the fate of the physical evidence was decided. By the verdict of the court M. She was found guilty of having illegally sold the narcotic drug "extraction opium", previously bottled in a single-use syringe, for cash in the amount of 3,700 tenge to the citizen "Ivan", who was involved in the investigation, on February 8, 2018 at approximately 6:10 p.m. employees of the DEA Department of Internal Affairs of West Kazakhstan region in the role of a "buyer" of narcotic drugs. On the same day, at 7.20 p.m., citizen "Ivan" voluntarily gave police officers a syringe with a narcotic drug. The case was not considered in the appellate instance. The submission of the Chairman of the Supreme Court on the cassation review of judicial acts in this case was made due to a violation of uniformity in the interpretation and application by the courts of the norms of law in relation to convicted M. In his submission, the Chairman of the Supreme Court believes that the court's conclusions on the evidence of M.'s guilt are based on evidence that was not verified at the court session, which led to M.'s unjustified conviction.

Legality and validity of the verdict The verdict of the court must be lawful and justified

According to part 18 of Article 494 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), on the recommendation of the Chairman of the Supreme Court, the cassation instance fully verifies the establishment of the factual circumstances of the case and the application of the criminal law, compliance with the norms of the criminal procedure law during the proceedings, the legality and validity of the verdict or decision of the court of first instance, appeal, cassation instances. The Chairman of the Supreme Court submitted a submission on the review of judicial acts in cassation on the basis of paragraph 1 of part 1 of Article 485 of the CPC in connection with the conviction of an innocent man. In this case, the court of first instance, in violation of the constitutional principle (Article 77 of the Constitution) and the requirements of article 19 of the CPC on the presumption of innocence, interpreted the existing doubts in favor of the prosecution without sufficient grounds and ruled on assumptions. The condemned M. During the pre-trial investigation and at the court hearing, she claimed that she sold tropicamide eye drops, which are not narcotic drugs, in a disposable syringe. These statements of the convicted M. have not been refuted. According to the video of the control purchase, citizen "Ivan" received from M. a syringe with liquid and a package of tropicamide. The voluntary release protocol dated August 8, 2018 indicates that the syringe is filled with a cloudy liquid. The expert opinion of February 8, 1968, which established the solution of the narcotic drug - "estrous opium", indicated a yellow-brown liquid. According to the testimony at the hearing of witness Sh., who executed the control purchase with the participation of a witness under the pseudonym "Ivan" in the office of the Department of Internal Affairs of West Kazakhstan region, "Ivan" voluntarily provided one syringe with a light-colored liquid. During a search at M.'s place of residence, 17 boxes of tropicamide and a syringe with a clear liquid were found and seized, which, according to an expert opinion dated March 30, 2018, does not contain narcotic drugs and psychotropic substances. The arguments of the defense about the receipt from M. a syringe with a clear liquid "tropicamide" and the issuance to police officers by citizen "Ivan" of a syringe with a yellow-brown liquid have not been properly checked. The issue of the visually perceived differences between the syringe with "extraction opium" issued by citizen "Ivan" and the substances seized during a search at the place of residence of convicted M., in particular, with the transparent colorless liquid of the drug "tropicamide" and the transparent oily liquid in the syringe, which does not contain narcotic drugs, has not been investigated.. The time period of 1 hour and 10 minutes remained without investigation and evaluation, during which citizen "Ivan" traveled from the place of purchase of a syringe with narcotic drugs from M. to the building of the Department of Internal Affairs of the West Kazakhstan Region. In the case, the time of sale was set at approximately 6:10 p.m., and the voluntary delivery of a syringe with narcotic drugs to police officers was 7:20 p.m.

Legality and validity of the verdict The verdict of the court must be lawful and justified

The contradictions in the procedural documents drawn up at the stage of the pre-trial investigation remained without attention and evaluation. In the case, the presence of the narcotic drug "extradition opium" in the syringe was established by an expert opinion dated February 8, 2018. Resolutions on conducting an operational purchase, taking security measures, a statement from citizen "Ivan", protocols for examining the buyer of narcotic drugs, handing over banknotes, handing over the product "K", protocols for voluntary issuance were issued on February 8, 2018. Whereas in the decision on the admission of the criminal case to its proceedings dated January 24, 2018, in the notification of the start of the pre-trial investigation dated January 24, 2018, in the decision on the determination of the procedural prosecutor dated January 24, 2018, in advance of the control purchase from the convicted M. and the expert opinion on narcotic drugs, it is stated that M. He is engaged in the sale of narcotic drugs in the form of "extraction opium". The court has not given a legal assessment to the indicated "predestination" of the criminal prosecution authorities. The Judicial Board of the Supreme Court, guided by the constitutional principle of the presumption of innocence, in the presence of violations of the criminal procedure legislation governing the obligation to substantiate a verdict with reliable and admissible evidence, recognizes the court's verdict against M. as based on assumptions and violating uniformity in the interpretation and application of legal norms by courts, illegal and unfounded. Based on the above, the judicial board for criminal Cases of the Supreme Court overturned the verdict of the court of first instance, the criminal case was terminated due to the absence of elements of a criminal offense in M.'s actions. The submission of the Chairman of the Supreme Court was satisfied. M. was recognized as having the right to compensation for damage caused by illegal actions of the bodies conducting the criminal process. 

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